05.09.09

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EPO and the Swiss Department of Justice Want to Make Some Free Software a Crime

Posted in Europe, Free/Libre Software, Law, Patents at 7:02 am by Dr. Roy Schestowitz

Mobility

Summary: Criminalisation of Free(dom) software still on Europe’s agenda due to patent law and cybercrime debate

NOW THAT the president of the EPO resigns, voices of dissent will have more ammunition with which to show that the EPO is heading the wrong way. As one person puts it, the EPO is just putting lipstick on an old pig that got rejected and it also permits patents (i.e. monopolies) on real pigs in the process.

Do you remember Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs? The Directive which requires EU members to protect computer programs as literary works and to provide for interoperability, decompilation and the making of back-up copies? Well, it is being repealed and re-enacted in consolidated form because a sufficient number of amendments have been made to it. It has now become Directive 2009/24/EC of 23 April 2009 on the legal protection of computer programs.

This law essentially forbids the distribution of Free software, making it illegal by imposition of scarcity on ideas (not implementation, which is already covered by copyrights quite successfully).

Glyn Moody highlights a response from the FSFE and in another writeup he discusses the silliness of it all, alluding to Alison Brimelow’s “as such” trickery.

As readers of this blog will know, software cannot be patented in Europe “as such”; quite what that wretched “as such” means is the subject of major arguments. As I noted earlier this week, the European Patent Office is currently conducting a consultation into that and much else concerning the patentability of software, to which it is relatively well disposed.

Mike Masnick weighed in on the same topic, namely the phasing in of software patents via the UK (where Brimelow is from).

Rather than just saying “uh, the courts said so,” it claims that it allowed the patent because it’s “more than just a software program,” saying that the invention was a “technical contribution.” Apparently, the new rules mean that as long as software makes a “technical contribution” it can be patented. But… uh… what software doesn’t make a “technical contribution” of some sort

Speaking of software patents, here is another attempt to use laws to criminalise some Free software (as if law alone will actually prevent possession of binaries and code rather than just daemonise it).

The Federal Department of Justice and Police recently proposed to introduce legislation illegalizing so-called «hacker tools» in Switzerland as well. However, the proposed paragraph deviates massively from the original European cybercrime convention which it attempts to implement. Consequently, the legislation would not only outlaw «hacker tools» which can be used only by evildoers breaking into other people’s machines without permission, but in fact any type of tool used to test or ensure system security (such as Nessus, Metasploit, or even simple administrative tools used for network debugging, such as tcpdump, snoop or wireshark).

It’s already ‘enforced’ in the UK and Germany. To be sarcastic, cybercriminals will surely be terrified by the thought of just possessing 0s and 1s, never mind the actual crime that they commit.

As DRM teaches, policing this is impossible and it only ever harms the innocent. Cybercriminals don’t obey laws pertaining to neither conduct nor possession; that’s what makes them criminals in the first place.

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